(dissenting) :
I dissent upon the ground that the proximate cause of the accident was plaintiff’s placing himself alongside one of these piles of bags that he testified he saw were improperly piled and in a dangerous condition. There was no evidence to show that to perform the duties required of him it was necessary to place himself between two piles of these bags. Plaintiff himself testified that he observed that the bags in the high piles were not locked or secured in any manner, but were merely piled one on top of another. It does not appear that he was directed by the shipping clerk or any of the defendant’s employees to place himself in this situation and, having knowledge as he himself expressly testifies as to the manner in which these bags were piled and knowing from his former experience how. the bags should be piled to make them secure, it was contributory negligence to place himself in such a position that the bags were liable to fall upon him when nothing appeared to show that he was required in the proper discharge of his duties to place himself in such a position.
I think, therefore, the judgment should be affirmed.
McLaughlin, J., concurred.
■ Judgment and order reversed, new trial ordered, costs to appellant to abide event.